Sumpter, R (on the application of) v Secretary of State for Works and Pensions

Public-authority consultation must be fair, but it need not be perfect. Fairness is intensely case-sensitive. The court asks whether proposals remained at a formative stage, whether consultees received sufficient information for intelligent consideration and response, and whether their responses were conscientiously considered. Successive consultations are assessed as a whole. A later consultation may address an earlier lack of clarity where consultees have a real opportunity to influence the policy and the decision-maker retains an open mind. Consultation information need not contain every projected numerical breakdown. It is sufficient if consultees can understand the policy and its likely general effects and respond intelligently.

Mr Steven Sumpter, a recipient of Disability Living Allowance, challenged the lawfulness of the consultation leading to the Personal Independence Payment scheme, particularly the 20-metre threshold in the mobility descriptors. He also challenged the Secretary of State’s later decision not to amend the criteria.

Hickinbottom J dismissed the judicial review claim: [2014] EWHC 2434 (Admin). The Court of Appeal considered whether defects in the earlier consultation were remedied by a later consultation and whether consultees had sufficient information about the policy’s effect on people with physical impairments.

1. Appeal dismissed. The consultation process leading to, and followed by, the Social Security (Personal Independence Payment) Regulations 2013 was not unlawful.
2. The applicable principles were substantially those identified in R (Moseley) v Haringey LBC [2014] 1 WLR 3497, as explained in R (Robson and Barrett) v Salford City Council [2015] EWCA Civ 6. Consultation must be fair. The proposals must remain formative, sufficient information must be supplied for intelligent consideration and response, and the decision-maker must conscientiously consider the responses. The application of those requirements is intensely case-sensitive, as illustrated by R (United Company Rusal PLC) v The London Metal Exchange [2014] EWCA Civ 1271.
3. The court had to assess the consultation process as a whole. It was unnecessary to decide whether the process would have been lawful had it ended in 2012 or early 2013. The later consultation was relevant because it gave consultees a proper opportunity to address the 20-metre criterion, while the Secretary of State retained an open mind. All options concerning the moving-around criteria remained open, including consequential changes to related criteria or funding.
4. R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) was distinguishable. In that case, excluding a possible airport site deprived consultees of their only real opportunity to present their case. Here, the later consultation provided a genuine opportunity to influence the policy.
5. The information supplied was sufficient. Consultees did not require every numerical breakdown, provided the documents made the policy and the projected reduction in enhanced-rate recipients reasonably clear. The challenge therefore failed on both consultation grounds.

1. Court of Appeal (Civil Division): dismissed the appeal against the decision below.
2. Queen’s Bench Division, Administrative Court in Birmingham: Hickinbottom J dismissed the judicial review claim in [2014] EWHC 2434 (Admin).